FFM20 v Minister for Immigration
[2021] FCCA 64
•22 January 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
| FFM20 v MINISTER FOR IMMIGRATION | [2021] FCCA 64 |
| Catchwords: MIGRATION – Review of a decision of a Delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs – where the applicant has been in immigration detention since 2010 – whether the Delegate fell into jurisdictional error by failing to consider what alternative outcomes were available to the applicant – whether the Delegate fell into jurisdictional error by denying the applicant procedural fairness – whether the Delegate fell into jurisdictional error by taking insufficient, or no account, of findings of fact made in earlier Court and Tribunal decisions concerning the applicant – whether the Delegate’s decision was affected by actual bias – no jurisdictional error is made out – the application is dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.5, 5J, 32(2)(a), 36(2)(a)-(aa), 46A(2), 55, 189, 196, 473CC, 476, 477. |
| Cases cited: ASF17 v Minister for Immigration and Border Protection [2018] FCA 1149. DSO18 v Minister for Home Affairs [2020] FCA 286. Hossain v Minister for Immigration and Border Protection [2018] HCA 34. Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344. Mentink v Minister for Home Affairs [2013] FCAFC 113. Minister for Immigration and Multicultural Affairs v Jia [2001] HCA 17. Minister for Immigration and Border Protection v SZSSJ [2016] HCA 29. SCAA V Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668. Torrens Aloha Pty Ltd v Citibank NA [1997] FCA 77. |
| Applicant: | FFM20 |
| Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| File Number: | SYG 2887 of 2020 |
| Judgment of: | Judge Humphreys |
| Hearing date: | 17 December 2020 |
| Date of Last Submission: | 17 December 2020 |
| Delivered at: | Parramatta |
| Delivered on: | 22 January 2021 |
REPRESENTATION
| Solicitors for the Applicant: | Mr Ginges |
| Counsel for the Respondent: | Mr Liu |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The name of the Respondent be changed to Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.
The application is dismissed.
The Applicant to pay the Respondent’s costs fixed in the amount of $8,000.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA |
SYG 2887 of 2020
| FFM20 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
Respondent
REASONS FOR JUDGMENT
Introduction
The applicant appears to have been born in the Western Sahara in October 1992. The applicant believes he is about 27 years of age. The applicant is apparently stateless. The applicant arrived in Australia as an unauthorised air arrival due to false documentation on 28 January 2010 and was refused Immigration clearance. The applicant has been in Immigration detention since his arrival.
The applicant’s history is complex. At an interview on 9 October 2017, the applicant explained that he believes that his parents were Bedouins who originated from the Western Sahara/North Africa. The applicant’s Safe Haven Enterprise visa (“SHEV”) application indicates that his father was deceased prior to his birth and that at the age of six, the applicant’s mother either passed away or deserted the applicant, effectively making him an orphan.
The Department of Home Affairs (“the Department”) has information which indicates that as a young child, the applicant believes that he travelled to Spain. The applicant believes that he and other street children travelled either illegally or were trafficked to Europe where they became involved in gangs. For many years, the applicant used various false identities and passports issued to him in various names and nationalities to travel throughout many countries in Europe.
The Department has information which indicates that, on 27 March 2004, the applicant was registered in Norway as an asylum seeker under a false name. As Norwegian authorities confirmed that the applicant was a minor at that time, he was granted a residence permit until 24 September 2004 on strong humanitarian grounds. The applicant was granted a number of extensions and his residence permit in Norway expired on 24 September 2010.
The applicant travelled to Australia using a Norwegian passport under another name and with another date of birth. The applicant’s connection to Norway was not disclosed upon his arrival but was discovered through social media and confirmed through fingerprint checks as a result of an investigation by identity specialists within the Department. Since the applicant’s arrival in Australia, he has applied to renew his temporary status with Norwegian authorities on humanitarian grounds. This was refused by Norwegian authorities on 12 October 2011.
Since the applicant’s arrival in Australia, he has made a number of protection visa applications. An application made on 11 June 2010 was refused by a delegate of the Minister for Immigration (“the delegate”). The then Refugee Review Tribunal affirmed the delegate’s decision to refuse the applicant that visa on 21 September 2010. The applicant made a further application on 6 November 2013. The applicant then went through an appeal process ultimately to the Full Court of the Federal Court, under another pseudonym. The applicant’s appeals were unsuccessful.
The applicant subsequently commenced proceedings in the High Court of Australia, in its original jurisdiction, seeking a declaration that his continued detention at an immigration facility was unlawful as it was not authorised by s 189 and s 196 of the Migration Act 1958 (Cth) (“the Act”).That application was unsuccessful
On 26 July 2017, the Minister exercised his power under s 46A(2) of the Act to allow the applicant to lodge a Temporary Protection (Class XD) visa or Safe Haven Enterprise (Class XE) visa application. This application was lodged on 13 September 2017. The delegate refused the visa application on 2 January 2018.
As it was determined that the applicant had made a claim for protection in a country other than Australia, namely Norway, that was refused by that country, the Department found that the applicant meets the definition under s 5(1)(a)(iii) of the Act as an “excluded fast track review applicant”. Accordingly, the applicant is not entitled to merits review by the Immigration Assessment Authority (“the Authority”) or the Administrative Appeals Tribunal (“the Tribunal”).
The applicant now seeks judicial review of the delegate’s decision to refuse him a protection visa.
The Delegate’s Decision
After setting out the applicant’s history as known to the Department, the delegate concludes, at the bottom of page 7 of their decision, that the details of the applicant’s name, date of birth and nationality are still unresolved. The evidence suggests that the applicant does not currently have an existing right to enter and reside in a third country.
The delegate concluded that, whilst the applicant does not have an existing right to enter or reside in Norway, based on the fact that he resided there from 2004 to 2010, Norway was the place of the applicant’s habitual residence prior to arriving in Australia. Accordingly, the delegate was satisfied that Norway is the applicant’s receiving country for the purpose of the decision.
Part 4 of the delegate’s decision sets out the applicant’s history as claimed by him and his claims for protection. This makes for depressing reading, including, if true, the applicant’s account of being orphaned as a young child, being trafficked as a child and his involvement with street gangs in Europe and Norway. The applicant was imprisoned in Norway as a juvenile for criminal offences. The applicant claims that he will be at risk if he is sent back to Norway from members of his previous street gang as well as corrupt Norwegian police officers and government officials.
Part 5 of the delegate’s decision sets out relevant findings of fact. The delegate, in their decision, noted that the applicant feared harm from non-state actors and therefore an assessment regarding whether the Norway is unable, or unwilling, to provide adequate protection from persecution is required. The applicant also made claims that he fears the gang because he can identify senior police members and government officials who the gang bribed and he believes that Norwegian authorities would not protect him from retribution from the gang.
The delegate noted that, whilst the applicant may have been trafficked to Europe as a small child and may have been involved at some point in criminal gangs, the delegate found that the applicant’s account of events differ from one interview to another which suggested he may have embellished his claims in this regard. The delegate was, however, prepared to accept as plausible that the applicant was involved at some level in criminal gangs in Norway.
The delegate, in their decision noted that in relation to the claim that Norwegian authorities would not protect the applicant or stop gangs from harming him, country information indicated that the law in Norway provides criminal penalties for corruption by officials and that the government has maintained effective control over the national police. Further, the delegate notes in their decision that Norway has effective mechanisms to investigate and punish abuse and corruption. The delegate did not accept as plausible that the applicant would face a real chance of serious harm or a real risk of significant harm if he returned to Norway on the basis of his claim in relation to a risk from criminal gangs and corrupt government officials and police officers.
The delegate in their decision considered whether or not the applicant fears harm upon return to his country of former habitual residence because he claimed to have no religion. Country information indicates that there is no supporting information that these claims are credible.
The applicant claims to have a history of torture or trauma as well as medical and psychological conditions including depression and a developmental brain abnormality. The applicant claims that these conditions have been caused, or exacerbated, by his time spent in detention. No medical evidence was provided to support these claims, nor did the applicant make any claims to fear harm because of any medical or psychological condition on return to Norway. Consequently, the delegate found that the applicant did not have a genuine fear of harm for this reason.
The delegate, in their decision, noted that the claims made by the applicant in relation to a violation of Human Rights in Australia arising from claimed arbitrary detention, including prolonged indefinite detention in Australia are not relevant to whether the applicant satisfies the criteria for a protection visa. The delegate did not consider these claims further.
At part 6 of their decision, the delegate set out Australia’s protection obligations under s 36(2)(a) and s 36(2)(aa) of the Act. The delegate accepted, therefore, on the country information before it, that it is plausible that the applicant was, more likely than not, trafficked as a child to Northern Europe from Spain. However, the test to be applied is a forward-looking test and the assessment must be made as to whether or not the applicant faces a real chance of persecution on this basis in the reasonably foreseeable future. As the applicant is now an adult, it is unlikely that he would be trafficked by criminal networks in the event he were to return to Norway. The delegate therefore found that the real chance of the applicant facing persecution on this basis is remote.
The delegate, in their decision, noted that the applicant’s personal details were the subject of a data breach by the release of an “Immigration Detention and Community Statistics Summary” report in early 2014. Details of the applicant’s name, date of birth, nationality, gender and details about his detention were made available for a short period of time on the Court’s website. The delegate found that they could not discount the possibility that the applicant’s information may have been viewed by authorities and non-state actors in the applicant’s receiving country. The delegate in their decision, noted that the name which was disclosed is not the preferred name of the applicant. The delegate was satisfied that the information which was disclosed would not enable either authorities or non-state actors to be able to make a connection between the name disclosed on the website and the applicant.
The delegate was not satisfied that the applicant would face a real chance of harm on return to Norway on the basis of being a failed asylum seeker. There is no country information which suggests that failed asylum seekers face a real chance of harm for one or more of the persecution reasons listed at s 5(J)(1)(a) of the Act.
The delegate, in their decision, then turned their mind to the complimentary protection assessment criteria under s 36(2)(aa) of the Act. In relation to the applicant’s involvement with criminal gangs in Norway, the delegate found that the applicant had provided inconsistent and conflicting information which suggested that either the applicant was not being truthful, or was unable to, due to the circumstances of his childhood, accurately re-recall the facts pertaining to his claims. The delegate also found that, as the applicant is now an adult, and any fears he once had would be reduced. The delegate also noted in their decision that Norway has the availability of effective state protection by the provision of witness protection programs. The delegate found that they were satisfied that the applicant could access the witness protection program with regards to the claims he has made. Country information suggests that Norway supports victims of trafficking and they are provided with government support and protection through safe houses and Non-Government Organisation assistance. Accordingly, the delegate found that the applicant did not satisfy the criteria for protection under the complimentary protection criteria.
Part 7 of the delegate’s decision deals with the determination that the applicant is an excluded fast track review applicant on the basis that he made a claim for protection in Norway on 24 September 2004 but that his permit expired on 24 September 2010. Information before the Department indicated that on 9 May 2011, after the applicant arrived in Australia, the applicant applied for a renewal of his residency permit with the Norwegian Embassy in Canberra. The Norwegian authorities found that there were no strong humanitarian grounds and the application was refused on 12 October 2011. Accordingly, the delegate was satisfied that the applicant met the definition of an excluded fast track review applicant in s 5(1) of the Act.
Grounds for Judicial Review
In an application dated 21 October 2019, the applicant firstly seeks an extension of time for the filing of the application in this Court. The decision the subject of the application was made on 2 January 2018. The relevant appeal period is 35 days from the date of notification. As the refusal notification was sent by email to a nominated recipient, the applicant is taken to have received the refusal notification on the day it was transmitted. The application to the Court is thus approximately 19 months out of time.
In relation to the substantive matters alleging jurisdictional error, the applicant set out the following grounds:
Ground One:
The Delegate engaged in jurisdictional error because, the decision is unreasonable as defined by the Act, having not taken into consideration what alternative outcome is available for the Applicant.
Ground Two:
The Delegate engage in jurisdictional error because, the Delegate denied the applicant procedural fairness in not allowing the Applicant apply to RRT before referring the matter straight to the FCC.
Ground Three:
The Delegate engage in jurisdictional error by failing to consider a relevant consideration.
Ground Four:
The Delegate did not observe the procedures / regulations required by the Act as the Delegate did not explore the possibility that the Applicant may not, in fact, be stateless.
Ground Five:
The decision of the Delegate involved an incorrect application to the facts as found by the person who made the decision.
Ground Six:
The decision of the Delegate was affected by actual bias.
The Applicant’s Submissions
The applicant appeared before the Court represented by Mr Ginges, a solicitor acting on a pro bono basis. The Court extends its sincere thanks to Mr Ginges for his assistance to both the applicant and the Court.
In written submissions filed with the Court on 4 December 2020, ground four is withdrawn on the basis that the applicant asserts he is in fact stateless.
Leave was sought to amend ground 5 to read:
The decision of the Delegate involved an incorrect application of the law to the facts as found by the Delegate.
Firstly, the solicitor on behalf of the applicant submitted that the delegate fell into jurisdictional error in failing to allow for other possible sufficient criteria other than those contained in s 36(2)(a) and (aa) of the Act for a noncitizen to be eligible for a protection visa. Such a reading would be consistent with the broad discretion within the Minister’s powers implied by the wording in s 36(2)(aa) of the Act. It was submitted by the solicitor on behalf of the applicant that the delegate erred in their finding as to matters of fact in relation to:
a. The applicant has a receiving country;
b. The receiving country for the applicant is Norway;
c.The applicant has no reason to fear substantial harm if he were to return to Norway, and therefore
d. That the applicant is not a refugee as defined by s 32(2)(a) of the Act.
It was submitted by the solicitor on behalf of the applicant that the applicant is a stateless person. It was submitted that the applicant does not have a receiving country. There is no evidence that the applicant’s possible countries of origin, being Morocco, Algeria or Spain recognise that the applicant is a person with any entitlement to reside in that country. The Western Sahara, which is the applicant’s apparent earliest place of residence, is a disputed territory and cannot be described as a country.
The delegate’s assessment of Norway as the applicant’s former country of habitual residence appears to be based upon him having resided there for longer than any other country. Norway has explicitly refused to accept a refoulement of the applicant. In fact, the country of the applicant’s most lengthy habitual residence, even as at 2 January 2018, is Australia. It was submitted by the solicitor on behalf of the applicant that there is nothing in the Act to preclude the applicant’s “country of his former habitual residence” also being his country of current habitual residence.
The solicitor on behalf of the applicant further submitted that the delegate fell into jurisdictional error in their finding that the applicant has a receiving country other than Australia and that country is Norway. It is noted that the delegate calculated the applicant’s period of residence in Spain as being, at one point, three years in their decision and later, as six years. The significance of these errors lies in the subsequent finding made by the delegate that, on the basis of the applicant’s occasional “inconsistent and conflicting information” the delegate is led “to have doubts regarding his overall credibility”. It was submitted by the solicitor on behalf of the applicant that the delegate failed to make sufficient allowances for the limitations of the human mind given the circumstances of stress and trauma experienced by the applicant.
The solicitor on behalf of the applicant further submitted that the delegate fell into jurisdictional error by setting out the applicant’s protection claims in such a way as to impugn the applicant’s credibility. The delegate’s findings of fact are predicated upon their earlier findings that the applicant’s receiving country is Norway. It was submitted by the solicitor on behalf of the applicant that it is unsafe and unsound to make findings of fact upon this unsupported assumption.
The solicitor on behalf of the applicant further submitted that the delegate fell into jurisdictional error in basing findings of fact upon unsupported determinations which are, themselves, in dispute. Section 36(2)(aa) of the Act obliges Australia to offer protection to a person who faces a real risk of significant harm if they are returned to their receiving country. The applicant claimed to have a history of involvement with criminal gangs operating throughout Northern Europe. The applicant claims that he is fearful of being returned to Norway and being pursued by members of those gangs who, at the time he left Norway, believed he had stolen a substantial sum of money from them. The delegate takes little or no account of the evidence of the applicant’s compromised mental health and the likely causes of his mental conditions, including depression and post-traumatic stress disorder.
It was further submitted by the solicitor on behalf of the applicant that the delegate fell into jurisdictional error by discounting the applicant’s fears of harm if he were to be returned to Norway, and in making a positive finding that the applicant is not a person in respect of whom Australia has protection obligations.
The delegate, in their decision, found that the applicant is an excluded fast track review applicant. It was submitted by the solicitor on behalf of the applicant that the delegate’s conclusion rests upon a misreading, or a misunderstanding, of s 5(1)(a)(iii) of the Act. It was submitted by the solicitor on behalf of the applicant that a claim for protection must be made to a country that is not the applicant’s country of origin or the applicant’s country of habitual residence, but to a third country. The delegate, in its decision, found that Norway is the applicant’s first country. A claim for protection to Norway therefore cannot be a claim to a third country.
It was further submitted by the solicitor on behalf of the applicant that the delegate fell into jurisdictional error in determining that the applicant meets the definition of an excluded fast track review applicant. The applicant had been the subject of an earlier jurisdictional review by the Full Court of the Federal Court of Australia. The judgement was available, or ought to have been available, to the delegate. The findings of fact in those earlier decisions by this Court and the former Refugee Review Tribunal are not in dispute by the applicant. The delegate makes no reference to those findings of fact.
It was further submitted by the solicitor on behalf of the applicant that the delegate fell into jurisdictional error in taking insufficient or no account of the findings of fact in those previous decisions and in the manner in which they applied the law to those matters of fact. It was submitted by the solicitor on behalf of the applicant that the applicant explained the uncertainties about his name, his date and place of birth and his linguistic background in his Affidavit of 3 December 2020. The conclusions which the delegate has come to in respect of some of these matters are inconsistent with some of the facts which were known, or ought to have been known, to the delegate prior to the making of a determination. For that reason, the delegate has fallen into jurisdictional error.
Lastly, it was submitted on by the solicitor on behalf of the applicant that the concept of jurisdictional error was considered, at length, by the High Court in Hossain v Minister for Immigration and Border Protection [2018] HCA 34 (“Hossain”). In that decision, the High Court determined that it was not inappropriate to take into account the “materiality” of an error in a decision in determining whether not jurisdictional error had taken place. Only if an error is material, will it constitute jurisdictional error. It was submitted by the solicitor on behalf of the applicant that the law was in a state of flux as at the time that the delegate made their decision and the matter should be decided upon the law as it existed at the time the delegate published their review.
The First Respondent’s Submissions
In relation to the extension of time issue, the first respondent notes that the application is about 17 months outside the 35-day time period for seeking judicial review of a migration decision under s 476 of the Act. The Court has the discretion to extend the 35 day time for filing an application where the requirements of s 477(2) of the Act are met.
In considering whether to grant an extension of time, it was submitted by the first respondent that the Court must consider the length of and reasons for the delay, the merits of the proposed grounds of review, any prejudice to the other party or parties, the impact on the applicant and the interests of the public at large and the Court’s discretion itself:
(see Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at [348]-[9]). Whilst this list is not exhaustive, a case lacking merit will not ordinarily warrant the grant of an extension of time: (see Mentink v Minister for Home Affairs [2013] FCAFC 113 at [36]).
In this case, the delay is lengthy and the first respondent submits that there is insufficient merit to warrant an extension of time.
In relation to the first ground, that it was legally unreasonable that the delegate did not take into consideration what alternative outcomes were available to the applicant, it was submitted by the first respondent that on the critical issue of identifying the receiving country, the delegate considered numerous factors, including the applicant’s periods of residence in nine different countries, before concluding that the applicant was established and settled in Norway on more than a temporary basis. It was submitted by the first respondent that this finding was open to the delegate.
Secondly, the first respondent submitted that there was no error in the delegate’s findings that the applicant was an excluded fast track applicant. This is because, by operation of legislative instrument IMMI 17/015, the applicant was specified as a “fast tracked applicant”. The delegate found that the applicant was an excluded fast tracked applicant because he met the definition in s 5(1) of the Act as a person who had made a claim for protection in a country other than Australia that was refused by that country, namely, Norway in 2004. On that basis, the delegate’s decision was not a “fast track reviewable decision” within the meaning of s 473BB of the Act which could be reviewed by the Authority pursuant to s 473CC of the Act. Therefore, it was submitted by the first respondent that the Court has jurisdiction over the delegate’s decision: (see ASF17 v Minister for Immigration and Border Protection [2018] FCA 1149).
Thirdly, the first respondent submitted that the delegate did not fail to consider relevant considerations and did, in fact, consider the applicant’s claim that he was stateless. However, as noted earlier, the delegate found Norway to be the applicant’s receiving country and, on that basis, determined that “no further consideration will be given to any previous claims raised against Western Sahara/Morocco”. It was submitted by the first respondent that this finding was open to the delegate.
The first respondent submitted that the applicant’s contention alleging actual bias cannot succeed. Such an allegation must be “distinctly made and clearly proved”: (see Minister for Immigration and Multicultural Affairs v Jia [2001] HCA 17 at [69]). Beyond the mere assertion of bias, there are no particulars which would satisfy such an allegation.
In relation to the Court’s data breach in regards to its online portal that may have affected the applicant, it was submitted by the first respondent that the High Court found in Minister for Immigration and Border Protection v SZSSJ [2016] HCA 29 at [84] that “extraordinary as they are, the circumstances of the Data Breach do not warrant a departure from those ordinary requirements”. It was submitted by the first respondent that in the particular circumstances of the current case, there is still a requirement that the applicant must establish a jurisdictional error or a denial of procedural fairness in the delegate’s decision: (see DSO18 v Minister for Home Affairs [2020] FCA 286 at [10]-[12]).
In further written submissions filed following receipt of submissions provided by the applicant’s new legal representative, the first respondent noted that the applicant, in essence, contends that the delegate was wrong to find that his receiving country is Norway and this purported erroneous finding resulted in further errors concerning the delegate’s assessment of protection obligations and the finding that the applicant is an excluded fast track review applicant.
First, contrary to the applicants written submissions, the delegate did not err in its finding that Norway is the receiving country. It is submitted by the first respondent that the delegate had a rational basis for so finding. The applicant’s complaint is that “Norway has explicitly refused to accept a refoulement”. Even if this is the case, it does not vitiate the finding of fact made by the delegate about the applicant’s country of habitual residence for the purposes of identifying his receiving country.
Second, and related to the first issue raised by the applicant, the applicant appears to suggest that Australia is his country of habitual residence on the basis that he resided in Australia for a long period of time. This reading of the Act overlooks the fact that in s 5(1) of the Act, it refers to a “receiving country” in relation to a “noncitizen”. By definition, Australia cannot be a receiving country of a noncitizen for the purposes of an assessment under s 36(2)(aa) of the Act.
Thirdly, the applicant, in their written submissions, criticises the delegate’s findings concerning the applicant’s inconsistent evidence and credibility. This appears to be a reformulation of the applicant’s claim of bias and should be rejected. The delegate’s adverse findings concerning credibility turned on inconsistencies within the applicant’s evidence. This provided a rational basis for those findings. The first respondent submitted that the applicant’s complaint is not that there was no rational basis at all, but rather, that the delegate made “insufficient, if any, allowance for the limitations of the human mind”. The first respondent submits that this is an invitation to undertake merits review of the delegate’s finding.
It was further submitted by the first respondent that the delegate made a correct conclusion that the applicant was an excluded fast track review applicant as he was a person who had made a claim for protection in a country other than Australia that was refused by that country. Nothing turns on the delegate’s later reference to the PAM3 guidelines which refers to a “third country”.
It was further submitted by the applicant that the delegate fell into error by taking insufficient, or no account, of the findings of fact made in earlier Court and Tribunal decisions concerning the applicant. The applicant’s submissions do not identify the source of any obligation on the delegate to consider any earlier decisions. The delegate took into account the matters required by it under s 36(2) of the Act.
Finally, the applicant submitted that the line of authority establishing the need to demonstrate materiality before a finding of jurisdictional error can be made does not apply in this case because the delegate’s decision was made before the High Court’s decision in Hossain. In Torrens Aloha Pty Ltd v Citibank NA [1997] FCA 77 (“Torrens”), the full Court affirmed the proposition that “changes in the law effected by judicial decisions are not confined to events or transactions occurring after the date of the decision changing the law”. Therefore, the first respondent submits that the applicant bears the onus of establishing how the absence of any alleged error could realistically have resulted in a different decision by the delegate.
Consideration
The first issue relates to the application for an extension of time. Relevant considerations in that regard include the length of time between the expiration of the appeal period and the lodgement of the application, the reasons for the delay and the merits of the application. The first respondent submits that, even at an impressionistic level, the grounds have no merit. The solicitor for the applicant submitted that the delay was occasioned by the applicant seeking to pursue the application in the High Court on the advice of his previous legal advisers.
The applicant has been in immigration detention continuously since 2010. This will have necessarily limited his ability to access legal assistance. The Court has perused the various Affidavits of the applicant that set out the reasons for the delay in the lodgement of his application for judicial review by this Court. The Court is satisfied that there is a reasonable explanation for the delay. Given the applicant has been in immigration detention for 10 years, the Court is satisfied that this is an extraordinary case where it is in the interests of the administration of justice to make an Order that an extension of time be granted for the application to be made pursuant to s 477(2) of the Act.
In relation to Grounds one and two, based on the information before the Court, the Court is also satisfied that the Court has jurisdiction to hear the application. The Court is satisfied that the applicant became a “fast track applicant” by reason of his name being included in legislative instrument IMMI 17/015. The Court is satisfied that the applicant meets the definition of an “excluded fast track review applicant” pursuant to s 5(1)(a)(iii) of the Act, due to his previous unsuccessful refugee application in Norway. That was a matter of fact the delegate was entitled to find based on the material before them. Once that finding was made, this excluded any review other than by this Court.
The legislation sets out a scheme whereby an applicant for a protection visa claim must be assessed as against a receiving country. The delegate in this case found that Norway was the relevant receiving country being his habitual place of residence prior to arriving in Australia. The suggestion that Australia has become the applicant’s place of habitual residence for the purposes of a protection claim is novel, but misconceived. It cannot be the case that a claim can be made that, due to the length of time within Australia as a non-citizen, that Australia has now become that person’s place of habitual residence for the purpose of a protection claim. The definition of “receiving country” in s 5(1) of the Act makes it clear that if a non-citizen has no country of nationality, the receiving country is the country of habitual residence regardless of whether it would be possible to return the non-citizen to that country. The Court finds that there is no jurisdictional error in the decision of the delegate to find that Norway is the receiving country based on the material that was before the delegate. The Court agrees with the first respondent that Australia cannot become a receiving country for the purposes of an assessment under s 36(2)(aa) of the Act.
The Court is satisfied that there was no error in the finding made by the delegate that Norway was both the applicant’s previous habitual place of residence and a country other than Australia to which a protection application had been made. The fact that the application may have been made by a third party and not the applicant is, to the Courts mind, irrelevant as the definition in s 5(1)(a)(iii) of the Act of an “excluded fast track applicant” simply makes reference to being a person who, in the opinion of the Minister, has made a claim for protection. As the Court is satisfied that a protection claim was made in Norway in relation to the applicant, this is sufficient to satisfy the definition. No jurisdictional error arises in Grounds one and two.
In relation to ground three, the Court is satisfied that the delegate did consider all contentions raised by the applicant, including the contention that the applicant claimed that he was stateless. The issue was considered and rejected when the delegate found that Norway was the relevant receiving country. At part 4 of the delegate’s decision, a detailed summary of the applicant’s claims were set out. These were then considered but rejected. I cannot detect a claim that was made that was not dealt with. Ground three reveals no jurisdictional error.
Ground four was not pressed.
Ground five suggests an incorrect application to the facts by the delegate. In relation to the issues of the delegate’s findings on credibility and inconsistent evidence, the Court is satisfied that the delegate was entitled to consider this issue and come to the conclusions they did. Credibility is a relevant matter to consider in relation to claims for protection. The Court is satisfied that the delegate did consider the issue of the applicant’s age at the time and the consequent ability of the applicant to recall details of his time in Spain and then Northern Europe. Further, no medical evidence was presented that confirmed that the applicant has issues with memory due to mental health issues. Such a claim needs evidence to support it. Ground five reveals no jurisdictional error.
Ground six involves a claim of bias. The claim of bias, such as it is, cannot be sustained. Bias is a serious allegation that requires evidence. It will be a rare and exceptional case where bias can be demonstrated solely from the published reasons: (see SCAA V Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 at [38]). Nothing in the delegate’s decision and reasons indicates either actual or apprehended bias.
The delegate was making a fresh determination of a protection claim. The delegate was entitled to make new findings based on the entirety of the material before them. The Court agrees with the first respondent that the delegate was not limited to, or bound by, previous findings. Even if they were entitled to take account of such matters, they may not assist the applicant. Another Tribunal made a number of adverse findings as to the credibility of the applicant and the lack of co-operation with Australian authorities. The Court is satisfied that the delegate correctly instructed themselves as to the matters relevant pursuant to s 36(2)(a) and (aa) of the Act and made findings accordingly.
It is common ground between the parties that there was a data breach by the Court in respect of the applicant. By consent, Orders have been made to protect the identity of the applicant by assigning the applicant a fresh pseudonym and file number. References to previous judgements by other Courts relating to the applicant have been deliberately left out of this judgement.
The Court is not satisfied that the data breach, which is not contested by the first respondent, gives rise to jurisdictional error. As pointed out by the first respondent, the issue of data breaches has been previously considered by the High Court. Nothing in the current case gives rise to a denial of procedural fairness or other jurisdictional error due to the data breach.
The Court also rejects the submission that the principles in Hossain do not apply in this case. The Court accepts the submission made by the first respondent that changes in the law are not restricted to events or transactions that occur after the date of the decision as found in Torrens.
Having considered all of the submissions of the applicant, the Court is not satisfied that there is jurisdictional error in the decision of the delegate.
Whilst it might be easy to simply deal with this matter on the strict legal issues raised, it is appropriate that the Court make a number of further comments. Whether or not this applicant was Australia’s problem, he has become Australia’s problem. The applicant is, and remains, in a state of limbo, having failed to meet the criteria for the grant of a protection or any other visa over a 10 year period. The applicant remains in detention and unless there is an intervention by the Executive, will remain in detention indefinitely unless he can be transferred to a third country. The likelihood of that outcome must be assessed as entirely remote. No country has yet agreed to do so, nor are they likely to do so in the future.
The other option is that the applicant be released from detention. There is a significant cost to the community of keeping the applicant in immigration detention, far greater than the cost of supporting him in the community with extensive supports to ensure he is not a threat to the community and can live his life as best he can.
At some point, the Executive will need to find a solution to what is at the moment, legally, an insoluble problem. To simply ignore the problem and for the applicant to remain in detention for another 10 or 20 years or potentially longer is an outcome that sits uncomfortably with Australia’s commitment to Human Rights. In 2015, Flick J stated that the applicant’s circumstances were “not enviable”. Wigney J in the same case commented at that the statement by Flick J was perhaps “an understatement”. It remains so 5 years later.
Conclusion
Accordingly, the application is dismissed.
I certify that the preceding seventy-three (73) paragraphs are a true copy of the reasons for judgment of Judge Humphreys
Associate:
Date: 22 January 2021
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